ADWA ACTION ALERT

Join Our Online Community Receive action alerts, tips, news and special offers via e-mail.

EWA Membership Alert

INGRAM, Texas - Please read the following summary of the EAA v. Day & McDaniel case.  The debate over whether or not a landowner has a vested right in the groundwater is perhaps the most significant water issue to be resolved.
 
The 4th Court of Appeals in San Antonio just issued their decision in EAA vs Day & McDaniel. Although the decision is generally a victory for the EAA (the court upheld their original permit order, ruled that groundwater that escapes to a surface water course becomes state water, and that the trial court has to consider awarding attorney's fees to the Authority when it prevails in a lawsuit), the constitutional claims were remanded for further proceedings by the trial court. The opinion also held that there IS a vested property right in groundwater:
 
Unconstitutional Taking
Applicants asserted a claim in the district court that the Final Order resulted in a confiscation of their water rights, under color of law, without just compensation in violation of the Texas Constitution. See TEX. CONST. art. I, § 17 (stating no person's property shall be taken without adequate compensation). In its motion for summary judgment, the Authority argued Applicants' takings claim failed because they did not have a constitutionally protected vested interest in the groundwater. Applicants disagree and ask this court to reverse the trial court's judgment and "confirm the precedent of groundwater ownership as an unconditional component of land ownership."
 
This court recently held landowners have some ownership rights in the groundwater beneath their property. City of Del Rio v. Clayton Sam ColtHamilton Trust, No. 04-06-00782-CV, 2008 WL 508682, *4 (Tex. App.-San Antonio Feb. 27, 2008, no pet. h.) (citing Houston & T.C. Ry. Co. v. East, 98Tex. 146, 81 S.W. 279, 281 (1904)). Because Applicants have some ownership rights in the groundwater, they have a vested right therein. SeeTex. S. Univ. v. State St. Bank & Trust Co., 212 S.W.3d 893, 903 (Tex. App.-Houston [1st Dist.] 2007, pets. denied) (holding vested property right is one that has definitive, rather than potential, existence). Applicants' vested right in the groundwater beneath their property is entitled to constitutional protection. See Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 219 (Tex. 2002) (holding vested right is property right protected by constitution). The trial court therefore erred in granting the Authority's motion for summary judgment on this constitutional claim. Because the Authority moved for summary judgment only on the ground Applicants have no vested property right, we must remand Applicants' constitutional taking claim for further proceedings. (footnote omitted; emphasis added).
 
This is a very bad decision for groundwater districts and the ability to regulate groundwater withdrawals or deny permits. I will let you know if the EAA plans to file a motion for rehearing or an appeal to the Texas Supreme Court. TAGD did not file an Amicus brief or otherwise participate in this court decision.
 
Media Contact:
Greg Ellis
Executive Director
TAGDExec@texasgroundwater.org
Texas Alliance of Groundwater Districts
 www.texasgroundwater.org
(512) 535-2126